As a senator, Jeff Sessions waged a principled battle against President Obama’s efforts to rewrite the law using his pen and phone. Now, as attorney general, Sessions has led the charge in unraveling these abuses of the Constitution. On two occasions, one involving immigration and the other Obamacare, Sessions has concluded that the prior administration’s policies were illegal. And on both occasions, President Trump agreed and halted those unlawful programs.
Executive power is often described as a one-way ratchet: Each president Democrat or Republican augments the authority his predecessor aggrandized. To his remarkable credit, Sessions has done the unthinkable: He willingly surrendered the lawmaking power back to Congress, where it belongs. In mastering the art of the executive-action repeal, the attorney general has taken monumental steps to restore the rule of law in our republic.
President Obama unilaterally implemented two foundational changes to our immigration laws. First, in 2012, after the Senate declined to enact the DREAM Act, the Obama administration announced an executive workaround known as DACA. This policy deferred the deportation of the so-called Dreamers aliens who had entered the United States as minors but were not lawfully present and granted them work authorization and other federal benefits. Two years later, after the House rejected comprehensive immigration reform, once again the president turned to the pen and phone. DAPA, as the program became known, would have granted similar federal benefits to the parents of children who were citizens.
In mastering the art of the executive-action repeal, the attorney general has taken monumental steps to restore the rule of law in our republic.
Following a challenge by Texas and 25 other states, the Fifth Circuit Court of Appeals ruled that DAPA was illegal. That decision was appealed to the Supreme Court, where the justices split 4-4 following Justice Scalia’s passing, but the case did not directly affect DACA. Following the inauguration, the Trump administration rescinded DAPA a policy that had never gone into effect but, to the surprise of many, retained DACA. Texas, along with some but not all of the 25 others, threatened to sue the Trump administration if it continued to grant new licenses under DACA.
In response to this ultimatum, Sessions made an unpopular but principled decision, advising the Department of Homeland Security to wind down DACA. The attorney general determined that the policy was implemented “without proper statutory authority” and that this “open-ended circumvention of immigration laws” was “an unconstitutional exercise of authority by the Executive Branch.” He reaffirmed his “duty to defend the Constitution and to faithfully execute the laws passed by Congress.” Sessions added that the “proper enforcement of our immigration laws is, as President Trump consistently said, critical to the national interest and the restoration of the rule of law in our country.”
After eight years of a president who seldom found the outer bounds of his own power often resorting to contorted readings of statutes to advance his progressive agenda President Trump’s willing surrender of such authority, without any equivocation, is a breath of fresh air in an otherwise chaotic time. Indeed, while Democrats tend to over-enforce the law, the power to under-enforce laws is one that generally inures to the benefit of a deregulatory conservative agenda. This Cincinnatian act of self-restraint makes the administration’s concession a big-league victory for the separation of powers.
Last week, the attorney general began to drain another unconstitutional swamp: Obamacare. Under the Affordable Care Act, Congress created two different types of subsidies that were designed to lower insurance costs. One type, used to offset the premiums customers paid, was fixed through a permanent appropriation, meaning Congress would not need to add a new line item to the budget each year. The other type, known as cost-sharing-reduction subsidies (CSRs), would reimburse insurers for certain expenditures. The CSRs, however, were not fixed through a permanent appropriation. As a result, the Obama administration had to ask Congress for funding. In 2013, the White House made such a request, but apparently in an effort to avoid cuts under sequestration the request was later withdrawn. Instead, the executive branch simply raided the Treasury, pilfering funds from the permanent source to pay for the unappropriated CSRs.
The Republican-led House of Representatives sued the Obama administration and prevailed. A federal district-court judge in the District of Columbia ruled that Congress had never appropriated the funds for the CSRs. The Obama Justice Department appealed, but the case was held in abeyance leading up to the inauguration. Much to my surprise, the Trump administration continued to make these payments for nearly eight months. But thanks to the leadership of the Sessions Justice Department, that illegal practice too has drawn to a close.
In a letter to the Departments of Health and Human Services and Treasury, the attorney general determined that the ACA “does not appropriate funds for the CSR program.” He acknowledged that his predecessor had defended the payments, but “concluded that the best interpretation of the law is that the permanent appropriation” cannot be used to fund the CSRs. The Holder Justice Department had twisted the statutory language to argue that the payments to customers and insurers “are essentially two parts of a single program.” Sessions, however, stated the obvious: “The two programs are distinct.”
This situation is worlds away from President Nixon’s practice of impoundment, whereby he declined to spend money that had been appropriated, because he disagreed with Congress’s priorities — a practice that Congress subsequently prohibited. Here, President Trump declined to spend money that was never appropriated in the first place. Due to this relinquishment of power, the Trump administration has returned this important question to where it belongs: Congress. The Republican-controlled Congress should appropriate the funds for the CSRs, where the Democrat-controlled Congress did not.
Unsurprisingly, not everyone appreciates this leadership. In a series of lawsuits, Democratic attorneys general have sued the executive branch, alleging that President Trump is required to continue enforcing DACA and making the CSR payments whether or not Congress acts. Historically, clashes between the executive branch and the courts have followed a familiar pattern: The president takes an action he deems lawful; a court rules that the action is unlawful; the court orders the executive branch to halt the action. These recent lawsuits try to turn the tables in a bizarre way: The president deems an action unlawful, and halts it; a court rules that the action is lawful; the court orders the executive branch to continue taking the action.
One of the Supreme Court’s earliest and most significant decisions provides the rule of decision. The holding of Marbury v. Madison (1803) that federal courts have the power to invalidate acts of Congress is far more familiar than the facts of the case. In the waning hours of the Adams administration, William Marbury was nominated as a judge, but he did not receive his commission before the inauguration. Marbury then asked the Jefferson administration to finalize his appointment. James Madison, the newly confirmed secretary of state, refused to do so. Marbury filed suit in the Supreme Court, arguing that the law required Madison to deliver his commission. Ultimately, Chief Justice Marshall ruled that the Supreme Court did not have jurisdiction to hear the case. In reaching that conclusion, Marshall distinguished between certain acts that the executive branch could and could not be forced to take.
Where the Constitution or an act of Congress provides a “precise course as accurately marked out by law,” Marshall observed, such actions must be “strictly pursued.” Here, Madison’s duty to deliver Marbury’s commission was a “ministerial act which the law enjoins on a particular officer for a particular purpose,” Marshall concluded. Not so for “certain important political powers, in the exercise of which [the president] is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience.” For such political questions, the president is guided by his obligation to take care that the laws that is, the laws enacted by Congress are faithfully executed.
Marbury had a right to his commission. The same cannot be said for the issuance of discretionary immigration relief or for the payment of unappropriated funds. Congress did not chart a “precise course as accurately marked out by law” for either program, and there is none for the president to follow. Indeed, the Obama administration’s policies are illegal. With such “political” acts that are “entrusted to the executive,” Chief Marshall concluded two centuries ago, the courts have “no power to control that discretion.” And they do not.
The arguments from the Democratic attorneys general are indeed grotesque, for they seek to force the president to violate the oath of office he took on January 20, 2017: “I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” To better understand that oath, the Constitution allows the president to “require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices.” With respect to DACA and the CSR payments, Attorney General Sessions has done just that. And President Trump has accepted that advice.
In any event, the Trump administration does not need to be correct about the legality of these policies beyond a reasonable doubt. So long as the suspension of DACA and the CSR payments are not “arbitrary and capricious,” the courts may not block it. Moreover, even if a judge does find the decisions capricious, he cannot order the executive branch to approve new DACA applicants or make these payments absent an appropriation. As reflected in Marbury, the judiciary lacks the power to compel the executive branch to take discretionary acts that are not required by law. At most, a judge could order the government to seek public comment or reconsider its decision. Thus the current litigation, even if successful, may not help a single immigrant or insurer. Indeed, both groups have other avenues for relief. Aliens who are not lawfully present remain free to request that their deportations be deferred on a case-by-case basis. Likewise, insurers remain free to sue the federal government in the Court of Federal Claims to recoup any money they are due. But courts cannot order the executive branch to do that which the law does not require.
At bottom, whether to protect the Dreamers and assist insurers were always decisions for the legislative branch. Congress, and not the president, has the power to change the immigration laws. Congress, and not the president, has the power to provide payments to insurance companies. If the Dreamers and insurers are to be protected and they should be Congress must take the first step. The judiciary should resist the urge to intervene and should allow the legislative process to do its work.Josh Blackman is a constitutional-law professor at the South Texas College of Law in Houston, an adjunct scholar at the Cato Institute, and the author of Unraveled: Obamacare, Religious Liberty, and Executive Power.